Who’s to Judge?

Imagine that you are the judge asked to sentence a convict named Shon Hopwood, a twenty-three-year-old Nebraskan who has begged you for leniency and sworn he will change his ways. Hopwood has made a full and honest confession of all his crimes and can point to two years of service in the Navy, his past as a basketball star in high school, and a seemingly earnest repentance and desire to change. But he has also robbed five banks, brandishing a gun, and spent the proceeds on alcohol and drugs.

Sentencing decisions change lives forever, and, for that reason and others, they’re hard to make. It is often suspected that different judges sentence differently, and we now have a better idea of this. A giant, forthcoming study of the federal judiciary reveals clear patterns: Democrats and women are slightly more lenient. Where you’re sentenced matters even more. Judges in the South are harsher; in the Northeast and on the West Coast, they are more easygoing.

The study’s author is Crystal Yang, a fellow at the University of Chicago Law School, who based it on data from more than six hundred thousand convicted defendants between 2000 and 2009. (Impressively, in certain ways her study exceeds the work of the United States Sentencing Commission.) She writes, “Female judges sentenced observably similar defendants to approximately 1.7 months less than their male colleagues.” In addition, judges appointed by a Democratic President were 2.2 per cent more likely to exercise leniency. Regional effects are more challenging to measure, because, for example, the kinds of crime that happen in New York might differ from those in Texas. But recent data suggest that, controlling for cases and defendant types, “there is substantial variation in the sentence that a defendant would receive depending on the district court in which he is sentenced”—as much as eleven months, on average. The results are all statistically significant, according to Yang—and, if the differences sound relatively small, it is also important to remember that what she is measuring are average differences. In straightforward cases, judges may be more likely to issue similar rulings. It’s the hard cases where judges vary. In a case on the edge, the identity of your judge might make an important difference.

Yang’s findings of judicial variation might make you think that we now need new laws to promote uniformity. Some congressional Republicans, for example, support this position; James Sensenbrenner has suggested that judges in places like New York City and California are too lenient. It is also a position taken by some progressives, who consider the variation fundamentally unfair. As Marvin Frankel, a Democrat, argued back in 1973, when judges had very wide discretion, “The almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law.”

But mandating uniformity, if it sounds good, creates a different kind of unfairness. In fact, as those who follow this issue know, we’ve experimented with enforced uniformity: from 1987 until 2005, Congress took much of sentencing out of judges’ hands by setting mandatory federal guidelines, which made sentencing formulaic. Judicial discretion mattered only at the edges, for things like reduced sentences when guilty parties accepted responsibility. In 2005, the experiment ended, when the Supreme Court decided that the guidelines were unconstitutional, for reasons too complex to summarize here. Since then, the guidelines have been purely advisory: followed if the judge wants, and yielding, as Yang finds, to increased variation among judges.

We can see the unfairness created by mandatory guidelines by returning to Hopwood, our bank robber. He was indicted in 1999, after making a plea agreement, and, as a first-time offender, was sentenced to about twelve years in prison. Barely a year later, a man named Adam Clausen faced a roughly equivalent situation. Like Hopwood, Clausen went on a robbery spree, brandishing a gun and targeting massage parlors in Philadelphia. But prosecutors charged him to the maximum extent possible, and Clausen, under the guidelines, was socked with a mandatory sentence of two hundred and thirteen years without parole. Perhaps Hopwood repented convincingly, and, as it happens, he was serious about his desire to change his ways. He’s now a lawyer, and a clerk on the D.C. Circuit Court of Appeals. But, any way you look at it, a two-hundred-year difference in outcomes for roughly similar criminals is indefensible. And that was under a system designed to insure uniformity.

The Hopwood-Clausen story reveals the main problem with uniformity laws: they don’t actually create uniformity. Instead, as many critics allege, they tend to increase the power that prosecutors have over sentencing, and prosecutors, if anything, vary even more than judges. Knowing that sentences are fixed, a prosecutor can largely determine the final outcome based on the charges that he decides to bring or agree to. Measuring the differences between prosecutors is challenging, because two prosecutors might decide on very different crimes for exactly the same behavior; the fact that judicial variation is easier to measure means it gets more attention. There are, however, good reasons to wonder about prosecutorial power in sentencing, since prosecutors are not responsible for seeking fair sentences. Like other lawyers, they want to win. Unchecked prosecutorial sentencing, supplemented by congressional toughness, is what has left us with prisons overflowing with millions of nonviolent prisoners, an outcome that should be hard for anyone to cheer.

Judges, if imperfect, are at least set up, institutionally, to exercise judgment. Judges tend to react instinctively to abuses of power and laws that are out of control, because they see the results on a case-by-case basis. And so it may strike some people as unfair that female and male judges sentence slightly differently. But this is ultimately a small price to pay if judges are to serve as a check on prosecutorial power and congressional nuttiness. Judges aren’t perfect, but at least their job is to try to be fair.

Under the southern portion of the city exists its negative image: a network of more than two hundred miles of galleries, rooms, and chambers.

As the years passed, Tom grew more entrenched in his homelessness. He was absorbed in lofty fantasies and private missions, aware of the basest necessities and the most transcendent abstractions, and almost nothing in between.